Abortion is a very sensitive issue. Why not? It involves life and death of babies and sometimes, mothers.
In Nigeria, it is an even more sensitive topic because of our religious inclinations. In some more developed countries, a woman has the right to do as she wills with her body thus aborting her baby if she wants depending on some existing conditions. For example, in some countries, a woman may only abort her baby while it is dependent on the mother, once the baby can survive on its own without the mother, she loses all rights to abort her child. In Nigeria, however, that is not the case.
The Black’s Law Dictionary defines abortion as the expulsion of the foetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life. The unlawful destruction, or the bringing forth prematurely, of the human foetus before the natural time of birth; Sometimes loosely used for the offense of procuring a premature delivery; but strictly, the early delivering is the abortion; causing or procuring abortion is the full name of the offense.
In Medicine, it is defined as a loss of pregnancy due to the premature exit of the products of conception (the fetus, fetal membranes, and placenta) from the uterus due to any cause.
An abortion may occur spontaneously (termed a miscarriage) or may be medically induced. There are different types of abortion, some of which are Methotrexate and misoprostol, Vacuum aspiration, D&E, Induction, Late term, each with their distinct levels of effectivity and safety.
Laws on Abortion
The law on abortion in Nigeria is expressed in are expressed within sections 228, 229, and 230 of the Criminal Code Which operates in Southern Nigeria and sections 232, 233, and 234 of the Penal Code which operates in Northern Nigeria.
The Criminal Code
Section 228 of the criminal code reads thus:
“Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.”
Section 228 of the Criminal Code implies that anyone who with the intention to make a woman get an abortion, whether or not she is actually pregnant to causes the woman to get an abortion is guilty of a felony and liable to imprisonment for 14 years.
Section 229 reads:
“Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her is guilty of a felony and is liable to imprisonment for seven years.”
Section 229 pertains to where a woman, with the intention to induce a miscarriage of her child, whether or not she is actually pregnant, causes her child to be miscarried through any means; she is also guilty of a felony and liable to an imprisonment for 7 years.
And section 230 states as follows:
“Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child is guilty of a felony and is liable to imprisonment for three years. The offender cannot be arrested without warrant.”
Section 230 is with regard to any person who intentionally and unlawfully provides any material to induce an abortion in a woman whether or not the woman is actually pregnant; he is guilty of a felony and liable to imprisonment for 3 years, however, he cannot be arrested without a warrant for his arrest.
All situations relate to where there is an intention to induce a miscarriage or abortion of a pregnancy and applies whether or not it turns out that the lady was actually pregnant. For example, if a woman, believing she is pregnant though she is not, takes steps to induce a miscarriage of her perceived pregnancy. She is guilty of attempting to procure a miscarriage of her pregnancy and those who assisted by providing the means or tools to achieve this end are also guilty of a felony.
Note that section 228 and 230 apply even where the woman isn’t aware of the intention to procure miscarriage of her pregnancy i.e. a person may be guilty of attempting to procure a miscarriage or supplying means to procure a miscarriage where the woman is unaware of the intention to procure the miscarriage of her pregnancy.
The Penal Code
For the Northern Nigerian sphere, section 232 of the Penal code provides as follows:
“Whoever voluntarily causes a woman with child to miscarry shall, if the miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.”
This provides that anyone who intentionally causes a woman to miscarry her child, if the miscarriage wasn’t for the purpose of saving the life of the mother, will be liable to one or both of an imprisonment term of up to 14 years and a fine. The fine, since not stated will be at the discretion of the judge.
Section 233 provides thus:
“Whoever with intent to cause the miscarriage of a woman whether with child or not does an act which causes the death of that woman, shall be punished- (a) with imprisonment for a term which may extend to fourteen years and shall also be liable to fine; and (b) if the act is done without the consent of the woman, with imprisonment for life or for any less term and shall also be liable to fine.”
This provision simply states that any person who with the intention to cause the miscarriage of a woman’s pregnancy, whether or not she is actually pregnant, causes her to die will be liable to imprisonment for up to 14 years and a fine. Where the causing of the miscarriage was done without the knowledge of the dead woman, the punishment is imprisonment for life or less and a fine.
And section 234 states that:
“Whoever uses force to a woman and thereby unintentionally causes her to miscarry, shall be punished- (a) with imprisonment for a term which may extend to three years or with fine or with both; and (b) if the offender knew that the woman was with child, he shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”
This section provides that where a person uses any force on a woman and in the process, unintentionally causes the woman to have a miscarriage, such a person shall be liable to an imprisonment term of 3 years or a fine or both. However, if the person knew that the woman was pregnant, he would be liable to an imprisonment term of up to 5 years or a fine or both.
It is deduced from the above that not only is abortion of a pregnancy a crime in Nigeria but so is aiding and abetting abortion by providing means for it in terms of drugs, equipment, etc. However there is an exception, and it can be seen in the words of the provision. Where the abortion of the pregnancy is procured to save the life of the mother, it is not illegal. See section 232 of the Penal Code thus,
“Whoever voluntarily causes a woman with child to miscarry shall, if the miscarriage be not caused in good faith for the purpose of saving the life of the woman…”
Exception to the Law Against Abortion
section 297 of the Criminal Code states thus:
“A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.”
That is the only exception to the illegality of abortions in Nigeria.
Debates on Abortion
There are varying thoughts on this subject due to the high rate of deaths caused by abortions. Some people are moving for abortion of pregnancies to be legalized in Nigeria. This is in order to make safe abortions available to women and thus reduce the death toll of women dying from unsafe abortions. Another set of people are against this. In their opinion, that it’s like saying “Let us provide a safer way for women to kill their babies whenever they want so that they can do so easily and without fear, removing whatever sense of responsibility is left in them”. Thus they are pushing on the other end against trying to latch on to the fading sense of morality and accountability in the world.
Custody of a Child Born outside Wedlock
Each person is entitled to their individual opinion but the above is the legal position on the subject
Written by Mbachu Chinenye Esq
4 comments on “Legal Position on Abortion in Nigeria”
Is it possible for the Court to penalize someone who’s accused of procuring abortion without any evidence/witnesses?
According to section 36 of the Constitution, we have a right to fair hearing. Whoever has been arrested and charged for the offense of procuring abortion under the criminal code must be given a fair hearing and the Court will not pass judgment on an accused person without hearing from both sides and this may include hearing witness testimonies and submitting evidence.